Yesterday, the Supreme Court decided not take up an important takings case, the infelicitously titled 480.00 Acres of Land v. United States. As I blogged previously, Cato filed an amicus brief in the case in the hopes that the owner of the “480.00 Acres of Land,” Gil Fornatora, would ultimately receive the “just compensation” to which he is constitutionally entitled. The Court also missed the chance to correct the pattern of due process abuse that is apparently rampant in Florida. The case involved the federal government maneuvering to unjustly drive down property values before taking land for (legitimate) public use — in this case expanding the Everglades — thus greatly diminishing the compensation it was obligated to pay the owners. Fox News recently had a report about the case, in which I briefly appeared.
Interestingly — and sadly – since the Fox News report, my voicemail and email inbox has been receiving story after story of individuals who have experienced injustices similar to that of Mr. Fornatora. While it is unfortunate that this case has come to an end, the number of calls and emails leads me to believe that more cases like this will be making their way through the federal judiciary and that, eventually, this abuse will be halted.
To that end, while Cato does not involve itself directly in litigation, on the subject of takings and eminent domain abuse I can certainly recommend our friends at the Institute for Justice and Pacific Legal Foundation. Specifically on the type of “condemnation blight” at the heart of the Fornatora case, feel free to contact PLF’s Atlantic (Florida) office at (772)781-7787 or write to Pacific Legal Foundation, 1002 SE Monterey Commons Blvd., Suite 102, Stuart, FL 34996. Steven Gieseler was the attorney who presented the Fornatora case to the Supreme Court, and who got me involved.
In other eminent domain news, George Will had an excellent column on January 3 condemning the pernicious Atlantic Yards land grab.
CP: Cato's blog
Showing posts with label takings. Show all posts
Showing posts with label takings. Show all posts
Tuesday, January 12, 2010
Wednesday, December 2, 2009
Likely Supreme Court Tie Would Be a Loss to Property Owners
Today the Supreme Court heard argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection, a Fifth Amendment Takings Clause challenge involving beachfront property that I previously discussed here.
Essentially, Florida’s ”beach renourishment” program created more beach but deprived property owners of the rights they previously had — exclusive access to the water, unobstructed view, full ownership of land up to the “mean high water mark,” etc. That is, the court turned beachfront property into “beachview” property. After the property owners successfully challenged this action, the Florida Supreme Court – “SCOFLA” for those who remember the Bush v. Gore imbroglio – reversed the lower court (and overturned 100 years of common property law), ruling that the state did not owe any compensation, or even a proper eminent domain hearing.
As Cato adjunct scholar and Pacific Legal Foundation senior staff attorney Timothy Sandefur noted in his excellent op-ed on the case in the National Law Journal, “[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless.”
I sat in on the arguments today and predict that the property owners will suffer a narrow 4-4 defeat. That is, Justice Stevens recused himself — he owns beachfront property in a different part of Florida that is subject to the same renourishment program — and the other eight justices are likely to split evenly. And a tie is a defeat in this case because it means the Court will summarily affirm the decision below without issuing an opinion or setting any precedent.
By my reckoning, Justice Scalia’s questioning lent support to the property owners’ position, as did Chief Justice Roberts’ (though he could rule in favor of the “judicial takings” doctrine in principle but perhaps rule for the government on a procedural technicality here). Justice Alito was fairly quiet but is probably in the same category as the Chief Justice. Justice Thomas was typically silent but can be counted on to support property rights. With Justices Ginsburg, Breyer, and Sotomayor expressing pro-government positions, that leaves Justice Kennedy, unsurprisingly, as the swing vote. Kennedy referred to the case as turning on a close question of state property law, which indicates his likely deference to SCOFLA.
For more analysis of the argument, see SCOTUSblog. Cato filed an amicus brief supporting the land owners here, and earlier this week I recorded a Cato Podcast to that effect. Cato also recently filed a brief urging the Court to hear another case of eminent domain abuse in Florida, 480.00 Acres of Land v. United States.
CP: Cato's blog
Essentially, Florida’s ”beach renourishment” program created more beach but deprived property owners of the rights they previously had — exclusive access to the water, unobstructed view, full ownership of land up to the “mean high water mark,” etc. That is, the court turned beachfront property into “beachview” property. After the property owners successfully challenged this action, the Florida Supreme Court – “SCOFLA” for those who remember the Bush v. Gore imbroglio – reversed the lower court (and overturned 100 years of common property law), ruling that the state did not owe any compensation, or even a proper eminent domain hearing.
As Cato adjunct scholar and Pacific Legal Foundation senior staff attorney Timothy Sandefur noted in his excellent op-ed on the case in the National Law Journal, “[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless.”
I sat in on the arguments today and predict that the property owners will suffer a narrow 4-4 defeat. That is, Justice Stevens recused himself — he owns beachfront property in a different part of Florida that is subject to the same renourishment program — and the other eight justices are likely to split evenly. And a tie is a defeat in this case because it means the Court will summarily affirm the decision below without issuing an opinion or setting any precedent.
By my reckoning, Justice Scalia’s questioning lent support to the property owners’ position, as did Chief Justice Roberts’ (though he could rule in favor of the “judicial takings” doctrine in principle but perhaps rule for the government on a procedural technicality here). Justice Alito was fairly quiet but is probably in the same category as the Chief Justice. Justice Thomas was typically silent but can be counted on to support property rights. With Justices Ginsburg, Breyer, and Sotomayor expressing pro-government positions, that leaves Justice Kennedy, unsurprisingly, as the swing vote. Kennedy referred to the case as turning on a close question of state property law, which indicates his likely deference to SCOFLA.
For more analysis of the argument, see SCOTUSblog. Cato filed an amicus brief supporting the land owners here, and earlier this week I recorded a Cato Podcast to that effect. Cato also recently filed a brief urging the Court to hear another case of eminent domain abuse in Florida, 480.00 Acres of Land v. United States.
CP: Cato's blog
Tuesday, November 10, 2009
Taking Land for Public Uselessness
Over at the Washington Examiner, Tim Carney reports that Pfizer is abandoning its New London offices and deciding what to do with the property it gained in the infamous Kelo v. New London land-grab:
That this purported “public use” is now exposed as the façade for corporate welfare that it always was is, of course, little comfort to Suzette Kelo and the other homeowners whose land was seized. But hopefully this will be an object lesson for other companies considering eminent domain abuse as a route to acquire land on the cheap — and especially for state and local officials who acquiesce in this type of behavior.
You can read Cato’s amicus brief for the ill-fated case here. Cato also hosted a book forum for the story of Suzette’s struggle, Little Pink House, featuring the author, Jeff Benedict, the attorney who argued the case, the Institute for Justice’s Scott Bullock, and Ms. Kelo herself, here.
CP: Cato's blog
The private homes that New London, Conn., took away from Suzette Kelo and
her neighbors have been torn down. Their former site is a wasteland of fields of weeds, a monument to the power of
eminent domain.
But now Pfizer, the drug company whose neighboring research facility had
been the original cause of the homes’ seizure, has just announced that it is closing up shop in New London.To lure those jobs to New London a decade ago, the local government promised to demolish the older residential neighborhood adjacent to the land Pfizer was buying for next-to-nothing. Suzette Kelo fought the taking to the Supreme Court, and lost.
Five justices found this redevelopment met the constitutional hurdle of “public
use.”
That this purported “public use” is now exposed as the façade for corporate welfare that it always was is, of course, little comfort to Suzette Kelo and the other homeowners whose land was seized. But hopefully this will be an object lesson for other companies considering eminent domain abuse as a route to acquire land on the cheap — and especially for state and local officials who acquiesce in this type of behavior.
You can read Cato’s amicus brief for the ill-fated case here. Cato also hosted a book forum for the story of Suzette’s struggle, Little Pink House, featuring the author, Jeff Benedict, the attorney who argued the case, the Institute for Justice’s Scott Bullock, and Ms. Kelo herself, here.
CP: Cato's blog
Friday, September 4, 2009
Beach v. Florida
Cato Adjunct Scholar and Pacific Legal Foundation Senior Staff Attorney Tim Sandefur published an excellent op-ed in the National Law Journal this week on the upcoming Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection:
It is well-worth a full read here.
Despite the dreadful decision in the Kelo case several years ago, the fight to maintain the fundamental right to private property continues in our courts and legislatures. Tim and PLF have been doing yeoman’s work in the fight for property rights, and I am proud to team Cato up with them and the NFIB Legal Center in filing an amicus brief on behalf of the rightful property owners in this case. You can download the PDF of the brief here.
[Cross-posted from Cato's blog.]
The case involves a Florida statute determining the boundaries of
oceanfront property. Under a 1961 law, the state drew a brand-new line
separating public and private land on certain beaches, meaning that some land
that would have been privately owned would belong instead to the state. A group
of property owners filed suit, arguing that the law deprived them of property
without just compensation, violating the state and federal
constitutions.
Last December, Florida’s highest court rejected their arguments. It held
that, while the new boundary gave the state ownership of the beach land, the
former owners actually had no such right to begin with. Despite more than a
century of Florida law to the contrary, the court announced that the owners
actually only had a right to “access” the ocean, and because the state promised
to allow them to keep crossing the land to reach the water, it actually hadn’t
taken anything away when it seized the land itself.
Thus, by simply reinterpreting state property law, the court allowed the
state to take property without compensation with a mere stroke of a pen. Yet the
U.S. Constitution forbids states from confiscating property – even through legal
legerdemain – without payment.
[...]
[T]he U.S. Constitution also guarantees every American’s right to due
process of law and to protection of private property. If state judges can
arbitrarily rewrite a state’s property laws, those guarantees would be
meaningless. More than four decades ago, Justice Potter Stewart warned that,
without a constitutional limit on the states’ power to determine the nature of
property, states could “defeat the constitutional prohibition against taking
property without due process of law by the simple device of asserting
retroactively that the property it has taken never existed at all.”
It is well-worth a full read here.
Despite the dreadful decision in the Kelo case several years ago, the fight to maintain the fundamental right to private property continues in our courts and legislatures. Tim and PLF have been doing yeoman’s work in the fight for property rights, and I am proud to team Cato up with them and the NFIB Legal Center in filing an amicus brief on behalf of the rightful property owners in this case. You can download the PDF of the brief here.
[Cross-posted from Cato's blog.]
Thursday, May 7, 2009
9/11 Memorial? Good. Eminent Domain Abuse? Bad.
The power of eminent domain, embodied in the Takings Clause of the Fifth Amendment, is so great that it nearly invites abuse, even when the government uses its power for constitutional, and even honorable, reasons.
Case in point: The U.S. Park Service has designed a memorial for Flight 93, the one that crashed in rural Pennsylvania on 9/11. The plans have been in the works for some time, with the government and representatives of Flight 93’s victims working with the property owners—even explicitly assuring them in 2002 that eminent domain would not be used.
As time passed, however, and the self-imposed deadline to have a memorial in place for the 10-year anniversary of the tragedy grows nearer, the government has become impatient and now plans to condemn the land of the seven owners (representing about 500 of the planned 2,200 acre memorial and national park) who have not yet worked out a deal with the Park Service.
While there are two sides to every story, it seems that the property owners have been flexible and open to negotiation—a far cry from the extorting hold-outs against whom eminent domain is supposed to be invoked:
Even if some takings of property are warranted—a 9/11 memorial certainly fits the “public use” requirement—look at the abuse of power we have here. Setting aside the question of why Lambert’s five acres are so crucial to a 2,200-acre project (and whether the memorial needs to be that large in the first place), why the strong-arm tactics?
Instead of letting an otherwise legitimate contract negotiation—the very foundation of our private property system—run its course, the government is resorting to robbing people because they had the misfortune to own the land near the place a historic tragedy occurred. This type of abuse is why eminent domain must be used sparingly, and why courts must be vigilant in enforcing the Fifth Amendment’s protection of property rights.
H/T: Nicki Kurokawa.
[Cross-posted at Cato's blog.]
Case in point: The U.S. Park Service has designed a memorial for Flight 93, the one that crashed in rural Pennsylvania on 9/11. The plans have been in the works for some time, with the government and representatives of Flight 93’s victims working with the property owners—even explicitly assuring them in 2002 that eminent domain would not be used.
As time passed, however, and the self-imposed deadline to have a memorial in place for the 10-year anniversary of the tragedy grows nearer, the government has become impatient and now plans to condemn the land of the seven owners (representing about 500 of the planned 2,200 acre memorial and national park) who have not yet worked out a deal with the Park Service.
While there are two sides to every story, it seems that the property owners have been flexible and open to negotiation—a far cry from the extorting hold-outs against whom eminent domain is supposed to be invoked:
“It’s absolutely a surprise. I’m shocked by it. I’m disappointed by it,”
said Tim Lambert, who owns nearly 164 acres that his grandfather bought in the
1930s. The park service plans to condemn two parcels totaling about five acres —
land, he said, he had always intended to donate for the memorial.
“To the best of my knowledge and my lawyer, absolutely no negotiations have
taken place with the park service where we’ve sat down and discussed this,”
Lambert said.Lambert said he had mainly dealt with the Families of Flight 93 and
said he’s provided the group all the information it’s asked for, including an
appraisal.
Even if some takings of property are warranted—a 9/11 memorial certainly fits the “public use” requirement—look at the abuse of power we have here. Setting aside the question of why Lambert’s five acres are so crucial to a 2,200-acre project (and whether the memorial needs to be that large in the first place), why the strong-arm tactics?
Instead of letting an otherwise legitimate contract negotiation—the very foundation of our private property system—run its course, the government is resorting to robbing people because they had the misfortune to own the land near the place a historic tragedy occurred. This type of abuse is why eminent domain must be used sparingly, and why courts must be vigilant in enforcing the Fifth Amendment’s protection of property rights.
H/T: Nicki Kurokawa.
[Cross-posted at Cato's blog.]
Tuesday, April 28, 2009
In Defense of "Libertarian Crusades"
We in the public interest legal community — especially on the libertarian or conservative side — are used to taking slings and arrows from all quarters. The media doesn’t understand our quaint obsession with following the text of the Constitution. The so-called progressives seethe at our evil defense of property rights and the freedom of contract. Even the business community blanches at our refusal to leave their sacred regulatory protections untouched in our attack on statism.
But what we don’t expect is to see federal judges openly and wantonly question our motives — least of all in an actual opinion. Yet this is precisely what Judge Jacques “Jack” Weiner did last Thursday in dissenting from a Fourth Amendment seizure/Fifth Amendment takings case. The case, Severance v. Patterson, involves a challenge to a Texas law that caused the seizure of beachfront property after Hurricane Rita pushed the vegetation line landward. The purpose of the law, the Open Beaches Act, is to ensure public access to the beach regardless of erosion and other natural land migrations (a.k.a. a “rolling easement”). The Fifth Circuit panel ended up affirming the dismissal of part of the claims and asking the Texas Supreme Court for a ruling on state-law issues implicated in others.
But the legal details aren’t important. What I want to highlight is Weiner’s dissent, which begins with the following “Context” (a section title not commonly found in judicial opinions; see pages 22-23 here):
Apparently in Judge Weiner’s world, it is beyond the pale for an organization to provide pro bono legal services that also advance some larger ideological mission. Somebody tell the NAACP or ACLU — or the Supreme Court for that matter, which invites amicus briefs from just the kinds of groups Weiner excoriates. Cato itself routinely files such briefs, of course, and on several occasions has joined with PLF.
Chief Judge Jones pithily dispatches her colleague’s grandiloquence in the majority’s first footnote (see bottom of page 2 here):
And I won’t even get into Weiner’s mixed metaphors and schoolboy Latin – he meant qua, not cum – other than to say “hit the road, Jack.”
(Full disclosure: I clerked on the Fifth Circuit and am familiar with Weiner’s squishy, unreliable jurisprudence; he’s very nice in person, but something happens in chambers — left-wing clerks? — that detracts from his effectiveness. One caveat: Weiner is a great friend of the taxpayer; the IRS does not win in his courtroom.)
For commentary from the Volokh Conspiracy, see here. For PLF’s press release, see here. Hat tip: Cato adjunct scholar Tim Sandefur (whose day job is with PLF, though he did not work on this case).
[Cross-posted at Cato's blog."]
But what we don’t expect is to see federal judges openly and wantonly question our motives — least of all in an actual opinion. Yet this is precisely what Judge Jacques “Jack” Weiner did last Thursday in dissenting from a Fourth Amendment seizure/Fifth Amendment takings case. The case, Severance v. Patterson, involves a challenge to a Texas law that caused the seizure of beachfront property after Hurricane Rita pushed the vegetation line landward. The purpose of the law, the Open Beaches Act, is to ensure public access to the beach regardless of erosion and other natural land migrations (a.k.a. a “rolling easement”). The Fifth Circuit panel ended up affirming the dismissal of part of the claims and asking the Texas Supreme Court for a ruling on state-law issues implicated in others.
But the legal details aren’t important. What I want to highlight is Weiner’s dissent, which begins with the following “Context” (a section title not commonly found in judicial opinions; see pages 22-23 here):
Although undoubtedly unintentionally, the panel majority today aids and abets
the quixotic adventure of a California resident who is here represented by
counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s
published mission statement declares that its raison d’être includes
“defend[ing] the fundamental human right of private property,” noting that such
defense is part of each generation’s obligation to guard “against government
encroachment.”) The real alignment between Severance and the Pacific Legal
Foundation is not discernable from the record on appeal, but the real object of
these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is
clearly not to obtain reasonable compensation for a taking of properties either
actually or nominally purchased by Severance, but is to eviscerate the OBA,
precisely the kind of legislation that, by its own declaration, the Foundation
targets. And it matters not whether Ms. Severance’s role in this litigation is
genuinely that of the fair Dulcinea whose distress the Foundation cum knight
errant would alleviate or, instead, is truly that of squire Sancho Panza
assisting the Foundation cum Don Quixote to achieve its goal: Either way, the
panel majority’s reversal of the district court (whose rulings against Severance
I would affirm) has the unintentional effect of enlisting the federal courts
and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers
in this thinly veiled Libertarian crusade. It is within this framework that I
shall seek to demonstrate how the panel majority misses the mark and why
Severance’s action should be dismissed, once and for all, for her lack of
standing to assert either a Fifth Amendment takings claim for reasonable
compensation (because Severance has had nothing taken by the State) or a Fourth
Amendment unreasonable seizure claim (because that which was putatively seized
did not belong to Severance at the time; and even if it had, there was nothing
unreasonable about the purported seizure).
Apparently in Judge Weiner’s world, it is beyond the pale for an organization to provide pro bono legal services that also advance some larger ideological mission. Somebody tell the NAACP or ACLU — or the Supreme Court for that matter, which invites amicus briefs from just the kinds of groups Weiner excoriates. Cato itself routinely files such briefs, of course, and on several occasions has joined with PLF.
Chief Judge Jones pithily dispatches her colleague’s grandiloquence in the majority’s first footnote (see bottom of page 2 here):
Notwithstanding the hyperbolic and unsupported assertions in Part I of the
dissent (“Context”), the judges of the court endeavor not to decide appeals
based on who the litigants are, who their lawyers are, or what we may believe
their motives to be. Whether that rule is observed in light of Part I of the
dissent, however, the reader must determine.
And I won’t even get into Weiner’s mixed metaphors and schoolboy Latin – he meant qua, not cum – other than to say “hit the road, Jack.”
(Full disclosure: I clerked on the Fifth Circuit and am familiar with Weiner’s squishy, unreliable jurisprudence; he’s very nice in person, but something happens in chambers — left-wing clerks? — that detracts from his effectiveness. One caveat: Weiner is a great friend of the taxpayer; the IRS does not win in his courtroom.)
For commentary from the Volokh Conspiracy, see here. For PLF’s press release, see here. Hat tip: Cato adjunct scholar Tim Sandefur (whose day job is with PLF, though he did not work on this case).
[Cross-posted at Cato's blog."]
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